Why the Armed Forces Special Powers Act is not leaving Kashmir anytime soon

On Sunday, Jammu and Kashmir Chief Minister Mehbooba Mufti tentatively suggested that the Armed Forces (Special Powers) Act be removed from certain areas in the Valley. It could be done on a trial basis and reimposed if the situation demanded it, she was quick to add.

The next day, “defence experts” such as MM Khajuria said that this was hardly the time to take the chief minister’s suggestion seriously and anyway the army had made it clear that it needed AFSPA to fight militants in J&K. The Centre maintained a studied silence and there the matter is likely to rest. For the history of AFSPA is also a history of tragic abdication by a political leadership that has deferred to the army and receded from areas where it was needed most.

As AFSPA became a symbol of state oppression in areas hit by militancy, it also became the focus of public anger and protests. In Manipur, for instance, Irom Sharmila went on a 16-year fast to end AFSPA after 10 people were allegedly gunned down by the Assam Rifles in Malom. In Kashmir, it has spurred violent protests against men in uniform.

For governments trying to contain movements of secession, repealing AFSPA could have gone a long way in winning back public confidence, restoring the credibility of state actors. But the civilian leadership seems afflicted by a case of nerves when it comes to AFSPA. In J&K, the deadlock over the law has occurred at two levels: in a battle of wills between the civilian and the military leaderships, and in an eternal passing of the buck between the Centre and the state.

Emergency without end

The controversial law was first imposed in Nagaland in 1958, to put down the armed uprising in the state. It defines the “use of armed force in the aid of civil power”, a doctrine common to laws in several countries, such as Canada and the United Kingdom. As Sanjib Baruah explains, the roots of the law go back to colonial policing, where the army and the police were viewed as complementary, not alternative, forces of control. In India, the implementation of AFSPA has been described as an undeclared emergency, where certain civil rights and freedoms are suspended. People under AFSPA have usually been treated as subject populations rather than citizens of a democratic state.

AFSPA grants soldiers executive powers to search and arrest without a warrant, to open fire if they feel the situation demands it, and to do so with a large degree of impunity. Action taken “in the line of duty” cannot be prosecuted in civilian courts unless the Centre allows it. As Baruah points out, the law’s assumption of “good faith” on the part of public servants turned out to be quaint.

Over the years, the powers and immunities granted to the AFSPA have been held responsible for hundreds of extrajudicial killings, enforced disappearances and fake encounters. In almost all theatres of conflict, the culture of impunity generated by AFSPA has also spread to other wings of the security apparatus, such as the police and the paramilitary, not strictly covered by the law.

An act that was ostensibly meant to meet the demands of “exceptional circumstances” has turned into status quo. Over the years, AFSPA spread from Nagaland to other states of the North East. In 1990, it engulfed Kashmir and in 2001, districts of Jammu. While new areas came under the rule of AFSPA, hardly any places emerged from it, even as militancy waned and the number of deaths went down across theatres. In 2015, Tripura became a notable exception.

The law can only operate in regions notified as “disturbed areas”, and the Supreme Court in 1998 remarked that an area could not be declared disturbed in perpetuity. The notification had to be reviewed every six months by the legislature. But who’s checking? In most cases, AFSPA remains firmly in place, an emergency without end.

Politicians versus generals

The Congress-led United Progressive Alliance presented the picture of a government that had good intentions frustrated by forces beyond its control, of natural compunctions that had to be set aside for national compulsions of security, defined by the military apparatus.

Back in November 2014, former home minister P Chidambaram had called AFSPA “an obnoxious law that has no place in a modern civilised society”. He followed it up last week with some tongue-clicking on how India had “ignored the grand bargain” made with Kashmir and broken its promises of greater autonomy. He also reiterated that, as home minister, he had wanted to concentrate troops at the border, leaving the police in charge of law and order.

When in government, Chidambaram had been far less vehement. In 2009, he reportedly defended AFSPA in a meeting with the United Nations high commissioner for human rights, Navaneethem Pillay, who had raised concerns about the law being misused. In 2010, a momentum built up against the law. Security forces had opened fire and killed over 120 protestors in the Kashmir Valley, prompting human rights groups to step up their agitation and then J&K chief minister Omar Abdullah to reiterate his suggestion that the law be rolled back from areas that were no longer disturbed. But when the Congress core committee met to discuss the proposal, differences arose between the home and defence ministries. The possibilities of that moment were frittered away.

In the years that followed, Chidambaram let it be known that a lack of consensus between government and army had made it difficult to move on AFSPA, and that the armed forces were not ready for a more “humane law”. But 2010 was not the only chance the government missed. In 2004, then prime minister Manmohan Singh had set up the Justice BP Jeevan Reddy Committee to review the provisions of the law. The committee’s report, which strongly recommended repealing AFSPA, was never made public by the UPA. The Centre also ignored the Kashmir interlocutors’ report, submitted in 2011, asking for amendments to the law.

In a democratic set-up where the civil leadership takes precedence over the military, the UPA’s protests sounded hollow. Why did its most powerful leaders allow the continuation of a law that they felt was morally untenable? There can be no satisfactory answer.

If the UPA made a pretence of introspection, the National Democratic Alliance made no such attempt. The Bharatiya Janata Party had always been on the side of the generals, opposing calls to dilute or revoke AFSPA. At the Centre, at least, the conversation around repealing the law died out after the new government came to power. In 2015, the Reddy committee report was rejected by the Union home ministry.

State versus Centre

State parties in J&K have traditionally come to power on positions of sympathy. Both Omar Abdullah’s National Conference and Mehbooba Mufti’s People’s Democratic Party projected themselves as representing Kashmiri interests to an indifferent Centre. Both blamed an obdurate Centre for their failure to remove AFSPA from the state.

Abdullah found himself on a shrinking scale of promises, pushed from revoking AFSPA altogether to removing it from a few areas to not at all. The PDP, which had always made the repeal of AFSPA an article of faith, found itself meeting the BJP halfway to form a state government in 2015. In the “Agenda for Alliance” signed off by the two parties, it cautiously agreed to “examine the need for denotifying disturbed areas”.

Then it turned out that the Jammu and Kashmir Disturbed Areas Act, which extended legal immunities to the state police in notified areas, had lapsed in 1998. And the last time the J&K government had notified disturbed areas under AFSPA was 2005, which meant a six month review was long overdue. But the legalities are blurred in practice anyway.

For instance, the J&K AFSPA stipulates that the power to declare areas disturbed lies with the Centre or the state governor. But officials in the Union home ministry claim the Centre had only notified a few areas and the state government had spread the scope of the law across J&K. So it was in the state administration’s power to withdraw it from these districts, they said.

Winning hearts and minds

The quibbling over legalities and the blame games cover up for a worrying displacement. In spite of the government’s protestations, armed forces are no longer used merely in aid of civil power. In many areas of J&K, the army has become the face of the state.

It has taken on economic and developmental roles that should have been reserved for governments, laying roads, starting schools, doling out scholarships, providing employment and skills training. Many of these schemes were devised under the Sadbhavana mission, aimed at “winning hearts and minds”, making the army more palatable to civilians. Even top generals have protested, however, that the task of reaching out to hostile groups and disaffected sections of the population lies with politicians.

But how could they? Over the years, the civilian leadership has ceded space to men in uniform and slowly lost legitimacy in Kashmir. It is a tall order, then, to expect this leadership to cut down on powers and immunities granted to the armed forces.